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Termination of employment

21 May 2018

By Cynthia Tellez

The death of an employer of a foreign domestic worker in Hong Kong is also the end of the worker’s employment contract. They are co-terminus. Meaning, when your employer died, your employment contract with him/her ended, and you have 14 days left on your visa - or less, if it expires earlier than this period. This is because the employment contract is not transferable. If you will continue to work in the same household, another member of the household should sign a new contract with you or you may look for another employer. Be conscious of this as you may overstay your visa.

It is therefore important to inform the Immigration Department of the circumstance to determine your status. Bring a copy of the employer’s death certificate or a letter from your employer’s family member to explain the situation.

With regards your end-of-contract payments, if the deceased has a family like a spouse or children who are willing to pay you the contractual obligations, well and good as you can easily settle the matter. But if there is no family member, then you have to find out who is the executor or administrator of his/her estate or if he/she left a will at all. If the deceased employer has a will, you just have to wait for the execution of the will to settle your deceased employer’s contractual obligations with you.

If uncertain and no one wants to take responsibility for the settlement of your claims under the employment contract with the deceased, you can go through the normal procedure for unpaid wages. File your claims at the Labour Relations Division (LRD) of the Labour Department. Go to the designated LRD branch depending on the deceased employer’s address. The defendant would be whoever is the executor or administrator of the estate . If you do not know who it is, you have to check at the Probate Registry (the Labour Officer will guide you) which is at the High Court, to know if there is a will left. The Registry will give you a certificate stating who is the valid executor/ administrator of the estate/properties.

If, at the Labour Relations Division meeting, the matter is not settled, then the usual procedure should follow: the case is endorsed to the Labour Tribunal if the amount of claim is from $8,000.00 or above; and if less than $8,000.00, it should be at the Minor Employment Claims Adjudications Board (MECAB).

If there is no record of the deceased at the Probate Registry, you will not be given a certificate. The Labour Tribunal or MECAB should be able to proceed with the hearing on a set date and issue you an Award/Order so you can then proceed to apply for the Protection of Wages with the Insolvency Fund. The Hong Kong government put up this fund for any eventuality like this one when the worker is left hanging, uncertain on how to claim unpaid salaries and benefits, like when an employer files for bankruptcy.

There are times, however, when the Labour Tribunal officer does not issue a hearing date and therefore no Award /Order is issued. You are stuck. File an appeal against the Labour Tribunal Officer’s decision so you could apply for Protection of Wages on Insolvency Fund. Whether or not the deceased left a will and the funds are not enough to pay the creditors, you have to be patient to wait for the court to decide. Again, you can apply for new employment with the Immigration Department while this is being settled.

If the above procedure sounds complicated, you may consult service providers for migrant workers/foreign domestic workers.

The above circumstances are experiences of migrants approaching the Mission. We can draw some lessons from them as preventive measures to avoid being put in a difficult situation in claiming what is rightfully and legally yours.

1. While there is sufficient time, it would be good to know some immediate relatives / next of kin of your employer. This is not only for your sake but also for the sake of your employer. In case something happens, you can immediately inform the next-of-kin for any decisions that need to be made.

2. With regards to claims for unpaid wages, while government agencies may insist that it is not their duty to look for anyone who can act as respondent (next of kin of employer or administrator of the estate) to answer for the claims filed against the deceased employer, they should be able to help you take a step forward and file a claim under the Protection of Wages on Insolvency Fund. Consult a service provider if this does not happen.

3. Try your best to also know your employer’s best friends so they can help provide you with the necessary information that is needed in filing your claims.

4. Keeping a diary will help. It would help if you record important information and incidents like amount of wages you received, the date and the amount given to you and who handed you the money. If your salary is being deposited in your bank account, it’s good practice to regularly update your bank book to show consistency of entries. The details that you list down will make it easier for you to make a detailed and accurate claim, especially in the absence of receipts that your employer may have failed to provide. So in addition, keep all pieces of paper given by your employers, especially those containing instructions of what they want you to do. It might be of use someday.

5. While filing your claims, try to look for a new employer. Your case might take too long especially if it is really difficult to find out who can decide for whatever properties or moneys are left behind by your deceased employer. The Immigration Department might not issue further extension of visa if your case is in a deadlock situation. But they might consider change of employment, “death of employer” being one of the exceptional cases under the Two-week Rule. If you have found a prospective employer, the only thing that you need to have is a copy of the death certificate of your employer or a letter from the family or close friends informing Immigration of the death. You may then work on completing the required documents for your claim while processing a new employment contract.

6. Lastly, when in doubt, consult service providers that you know.

For any assistance, you may call MFMW or the Mission at 2522-8264.

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This is the monthly column from the Mission for Migrant Workers, an institution that has been serving the needs of migrant workers in Hong Kong for over 31 years. The Mission, headed by its general manager, Cynthia Tellez, assists migrant workers who are in distress, and focuses its efforts on crisis intervention and prevention through migrant empowerment. Mission has its offices at St John’s Cathedral on Garden Road, Central, and may be reached through tel. no. 2522 8264.